Tracking trolls since 2001.

J Nicholas Gross

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Twitter debates are my favorite, and I fell sideways into one last week, as opposed to starting one jumping in with both feet like I normally do. It began with a simple tweet from Mike Masnick (of TechDirt):

It was in reference to a long, tall, beast of a tube that will put space craft and their inhabitants closer to orbit before launch, being built by a company named Thoth. Thoth is a Canadian company whose website is not thoth.com, but thothx.com. Interesting, because that’s kind of like the suffix of another space company.

Anyway, all I did (she said innocently, while batting her eyes) is retweet it which caught the attention of my colleague Nick Gross. The reply tweets that ensued are referenced below, and as you can see it escalated quickly:

I’ll not post the rest of the exchange because male posturing ensued and we all know that means denigrating each other’s…colleges. There was jail time mentioned, federal crimes, it got kinda ugly and all over what? The fact that companies sometimes patent stuff they never intend to build.

Why might a company do that, you ask? Well, there’s the option that Intellectual Ventures takes, which is to patent stuff so they can go sue people. I wondered to myself if that’s what Thoth had in mind…maybe they should patent their technology because Space Tube Elevator Lift Kit technology is sure to be a hot thing these days and they had better protect their “innovation” lest someone beat them to the atmosphere.

I expected to come up with a goose egg when I search for competition on this particular space race, but low and behold it seems that building a a giant corrugated tube up to the sky is, indeed, a “thing”, as this Kickstarter intimates. Then there’s this page, which is straight out of 1990, but talks nonetheless about a space elevator. There were a few others, enough to make me think that maybe this was a defensive patenting move.

Maybe it’s a licensing play? Patent the technology, never intending to build such an unwieldy beast, and just license it to others to fund your existing products (none of which, by the way, are on anywhere near this scale)?

The point of the argument on Twitter was that Thoth did indeed secure funding to build, though strangely the article linked by @JNGross only talks about how much it would cost, not the source of the money, so that meant that they weren’t just another company patenting something for the other reasons I listed above. And OK, you have a point there, but seriously? You’re going to blow someone else’s $5-10 Billion on a 30% reduction in rocket fuel costs and possible gains in efficiency?

I’m not a rocket scientist because I didn’t go to CalTech or MIT, but good golly, Miss Molly…that’s a pretty low ROI.

I don’t often get in fights on Twitter, but when I do, it’s with IP Watchdog because he’s a bully (only sometimes, but still) or with inventors who feel that any attempt at curbing patent trolls will adversely affect them and their ability to sue people who infringe on their ideas. OK, so maybe I exaggerate a little (or a lot because I am never prone to that) and they don’t think that any attempt is a dig at them, but it feels close sometimes.

I happen to “internet know” a couple of inventors, and one of them graciously agreed to answer some questions for me. It’s not an attempt to appear fair and balanced because that is not something I strive for here. It’s pretty clear where I stand because hello? THE NAME OF THE BLOG. But I’m not completely devoid of a conscience and am aware that there are often other interpretations of the patent landscape that cause people not to see things my way. Hard to believe that someone would disagree with me, I know.

Nevertheless, I put together this list of questions for some random dudemy friend guy-I-internet-know my inventor:

How long did it take you to get a patent on your idea, from the time you originally thought up the idea, to when your patent was issued?

What items have you commercially produced using your patented invention? If your invention is technology-based rather than product-based, what products have you brought to market using your patented technology?

How have you approached the “big players” in your industry to attempt to get them to license your patent? What resistance were you met with, and how have you overcome it?

What is the biggest barrier for small inventors to overcome when trying to approach the “big players” in their market?

For you and your product/patent specifically, what is the single most troublesome thing about current patent reform legislation?

Do you acknowledge the existence of Patent Trolls? If so, which company would you name as an example?

Outside of legislation, what do you think can be done to update the patent system so that it is more inventor-friendly? This can include adjustments at the Federal level to do with the USPTO, or things at the local level, like educational events for kids.

Do you think that “loser pays”-type litigation rules will hurt the small inventor? If such rules were universally adopted in the US, do you think it would make you less likely to sue a potential infringer?

How much time and effort do you put in to determining if infringement actually has taken place prior to filing suit/sending a demand letter? What resources do you use, meaning do you try and reverse-engineer products or technologies to see if competitors are infringing? What’s your due diligence process, in other words?

What are your feelings about the recent failure of the Senate to pass a patent reform bill? What would you like to see in a bill?

This will be a multi-part series because that is a lot of words up there in those questions! We’ll start with just the first two here to sort of set the stage.

So without further ado, I present to you an Interview With An Inventor, Part I:

Note: This is not the inventor I interviewed, as far as you know.

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1. How long did it take you to get a patent on your idea, from the time you originally thought up the idea, to when your patent was issued?

I have quite a few patents, but I will give an example of just one, namely US Patent No. 6,782,510 which deals with content filtering, a feature which is found in many corporate email systems. It has been cited 85 times by the PTO so I am fairly proud of it. The invention allows an administrator to control what kind of content can be distributed, on a recipient basis, so that different policies can be used for different audiences.

I thought of the idea in late 1997, and filed January 1998. It took more than 6 years to get it issued, which is not atypical unfortunately in this business. There is a serious problem with the PTO not performing their review fairly and timely, which costs inventors because by the time you get your patent, the technology may now be obsolete, or the market may have changed. A perfect example is US Patent No. 8700538, which deals with letting members in a community exchange playable media, such as DVDs. I filed for this in 2004, yet the patent took 10+ years to issue. There were a number of companies that came and went in this interval that I could have licensed and helped improve their offerings to make them more commercially viable. The PTO delays pretty much killed the entire economic opportunity there.

2. What items have you commercially produced using your patented invention? If your invention is technology-based rather than product-based, what products have you brought to market using your patented technology?

I do not try to commercialize all my inventions because sometimes it is just a matter of economics, meaning I don’t have access to capital that can help me hire a developer or market it in an effective/competitive way against established large companies. Even if I had a perfect email filtering program for example, there is no way I could compete against a Symantec, McAfee, Google, etc.

In other instances I *have* invested gigantic sums of my own money to commercialize inventions where the big companies are not yet present. If you look under the company name “Patent Savant” for example you will see a number of filings made by us covering patent data acquisition systems. We spent several man-years and $$ trying to bring this to fruition but have had limited success because the law changed (which reduced the value of the product) and the market became very crowded just as we were entering. We still have all the underlying code, tools, etc., however, and may pivot to implement a different variant in the near future.

From IP Nav’s comments about the recent Consumer Electronics Show, that ratio sits at about seven to one. I always enjoy IP Nav‘s comments on things mostly because I think that Barry Leff writes them and I like him. Never having met him in person, I do believe that he genuinely believes he’s on the right side of this debate, and I like that in a person.

Anyway, here’s a visual for you right-brainers out there:

Evidently, Erich Spangenberg was unhappy that he was the only one on his side of the line up for a talk that was part of the CES Innovation Policy Summit. Leaving aside the fact my opinion that patents do not equal innovation, it seems the summit drew a crowd, or at least the “Patent Litigation Reform: Who are You Calling a Troll?” panel did. (For the record, the answer to the question is “You, Erich.”)

Barry’s blog post for IP Nav takes us on a trip down memory lane, because nothing holds one’s interest more than a story about how a troll became a troll. But oops, wait just a second. We shouldn’t call Mr. Spangenberg a troll because

He’s not uncomfortable with the term “troll,” as the term has come to mean anyone who files a patent lawsuit.

Not anyone who files a patent lawsuit is a troll. You sound like J Nicholas Gross or Andy Pitchford now. Further, definitely not everyone who files a patent lawsuit is a troll either, only those who behave like thugs are. You know, like people who go after everyone and their uncle (and even the US Government, for crying out loud) because they have a crap patent that says you can’t scan and email without paying them to do it. And oh, look! You agree (emphasis mine):

Picking on app developers, tiny companies and sending letters with no justification is crazy—

Indeed. But want to hear what’s even crazier? Suing people using one of your shell companies and not even telling them what they infringed on. (This is a good write up of those wanton antics, with a great quote from a Techdirt article on same.) Oh, don’t throw out that tired line about it affecting declaratory judgment and venue. What you’re trying to do is extract a settlement because taking it to court is more expensive. That’s the troll MO, whether the troll uses base-less threatening letters or not.

One final quote from the article:

Bad behavior is not exclusively the province of patent owners.

No, it isn’t. But it’s the province of companies like IP Nav, and there are at least seven normal people who can agree on that.

If you follow me on Twitter which you totally should because there’s lots of talk about patents and the trolls thereof and also? I live with no less than three pre-teen children and a husband and a Texas Blue Lacy so really, is there a better place to find snarky comments or sarcasm? Probably not, that’s the answer you’re looking for.

Mayday the blue lacy, enjoying the mountains of Colorado.Great dog. Very stubborn. Just like his someone else we know.(Hint: totally not me.)

This blog post totally just jumped the shark…

If you follow me on Twitter (trying this lead-in sentence again since I got off track the first time), you’ll note that there’s been a bit of a back and forth between myself and one Andy Pitchford and J Nicholas Gross about this whole troll problem. The problem is that trolling isn’t an exact science. Sometimes a company can act like a troll and sometimes not. Some companies always act like trolls, even if they proclaim to be helping the little guy. I’ve said before that identifying a patent troll is kind of like defining obscenity: I can’t tell you what it is, but I know it when I see it.

I think the patent troll problem is pretty big, if not completely universal just yet. Some people (*cough, cough* Andy and J Nicholas) aren’t convinced there’s a problem at all. Some people are proud there’s a problem. (Looking squarely at you, IP Nav).

The point is this: not everything is a universal problem and can be solved with a universal solution. With patent litigation and patent trolls, there are very specific criteria that I think can be used to narrow the field of players even if a singular litmus test doesn’t (yet) exist. But even when that field is narrowed, I think the solution for the problem is not so simple. I think it will take many different combined approaches to stop the trolling behavior: exposure of demand letters, legislation (though it’s my least favorite option), companies with business models that combat the problem, Ninjas, and the eventual burn-out of the trolls when the market is able to exploit some other issue with another sector of the economy beyond Intellectual Property.

So what does this have to do with Christmas? Need I remind you that I was able to successfully link Charles Barkley’s derriere to patents so tying patents to Christmas is pretty much a slam dunk for me. <– See what I did there?

What it has to do with it is this: some problems are universal, and they require a universal solution. Something to bridge the gap that was formed when men decided to go their own way. To be the once and for all answer to the problems that separate us from the love we so desperately need.

What is the solution? A baby.

What child is this, who, laid to rest,On Mary’s lap is sleeping?Whom angels greet with anthems sweet,While shepherds watch are keeping?This, this is Christ the King,Whom shepherds guard and angels sing:Haste, haste to bring Him laud,The Baby, the son of Mary.

So bring him incense, gold, and myrrh,Come, peasant, king, to own him.The King of kings salvation brings,Let loving hearts enthrone him.Raise, raise a song on high,The virgin sings her lullabyJoy, joy for Christ is born,The baby, the Son of Mary.

“Come peasant, king, to own him”. In any station we may find ourselves, we all need and can own a solution to our problems.

What child is this? Just a savior, that’s all.

I wish one and all a very, very Merry Christmas, even if you’re a patent troll.